Shakespeare a Lawyer? - 22a - Falconbridge

Was Shake-Speare a lawyer?

Part 22  (1 of 2)

Valid Pointers to Shake-Speare being a Lawyer

1. Falconbridge v Falconbridge, and the law of bastardy

In King John 1.1.49ff, Phillip and Robert, the two reputed sons of the late Sir Robert Falconbridge, each claim to be his lawful heir entitled to his lands. The dispute is brought for trial before King John himself, as in those days it could be. The Clarkson and Warren account of the matter is incomplete (see their pp. 189 and 213-5, their book was mentioned in the first post in this series) because they reserve the evidential questions it raises to one of their later projected volumes which have never materialised. But the trial (of only about 100 lines) is fully treated by George W. Keeton, in his Shakespeare's Legal and Political Background, pp. 118ff.

Robert, the younger son, alleges that, although he and Philip were born to Lady Falconbridge, Philip's true father was King Richard I, Coeur de Lion, brother to King John. Robert advances three reasons for his contention that Philip is not Sir Robert's lawful heir: (a) That Sir Robert was abroad at the time when Philip was conceived; otherwise Philip's birth would have had to be 14 weeks premature - an impossibility. But at the time of conception Richard I lodged at Lady Falconbridge's house; (b) That on his death bed Sir Robert denied paternity of Philip; (c) That on his death bed Sir Robert made a Will devising his lands to Robert.

Philip makes no attempt to deny these facts. And King John accepts that Philip is the biological son of Richard I. Yet he gives judgment for Philip. He begins (to Robert):

    "Sirrah, your brother is legitimate;
     Your father's wife did after wedlock bear him,
     And if she did play false, the fault was hers;
    Which fault lies on the hazards of all husbands
    That marry wives".

This correctly states the basic rule that a child born to a man's wife during lawful wedlock is his legitimate offspring. There were, however, exceptions. King John does not state any. So Shake-Speare may have been unaware of them; or omitted them to keep the judgment simple; or thought them irrelevant to the facts of the case John was trying. According to Bracton in his De Legibus, written about 50 years after the end of King John's reign (1186-1216), there were four grounds on which the presumption of legitimacy could be rebutted. Two of the grounds are irrelevant to the facts of Falconbridge v Falconbridge, and so need not be stated. A third ground (exception) was that the husband had always repudiated the child as not his. But Sir Robert had only repudiated Philip on his death bed. The fourth ground was the absence of sexual intercourse with the husband at the time of conception. But some time after the reign of Henry III (1216-1272) the third ground was dropped from the law and the fourth ground was tightened so that absence abroad by the husband had to be proved during the whole period of the pregnancy. Sir Robert was only abroad at the start of his wife's pregnancy.

King John then proceeds (Lines 120-9) to give a rationale for the basic rule:

                 "Tell me, how if my brother,
    Who, as you say, took pains to get this son,
    Had of your father claim'd this son for his?
    In sooth, good friend, your father might have kept
    This calf, bred from his cow, from all the world;
    In sooth he might; then, if he were my brother's,
    My brother might not claim him; nor your father,
    Being none of his, refuse him: this concludes;
    My mother's son did get your father's heir;
    Your father's heir must have your father's land",

Thus, a little ungallantly, he draws an analogy between the birth of a calf to a man's cow and the birth of a child to his wife. It was indeed the law that the owner of the cow owned the calf. And this was the very rationale for the presumption of legitimacy given by one Judge Richill in a case reported in the Year Books for 1406, who said: "Whoever bulls my cow, the calf is mine". This was echoed in a legal textbook, A Brief Treatise of Testaments and Last Wills (1590) by H. Swinburne. So King John pronounces Philip Sir Robert's lawful heir.

The King does not deal specifically with the three reasons advanced by Robert, but it follows by implication from his judgment that he rejected them as irrelevant in law. He was right to reject the second reason because Sir Robert only repudiated Philip on his death bed; and the third reason because, as we shall see below, an heir could not at that time be disinherited by Will. But he was wrong to reject the first reason if Bracton's view that it was sufficient to show absence of sexual intercourse with the husband at the time of conception applied during the earlier reign of King John. However, even Bacon would have been unlikely to know when the rule was tightened, since practicing lawyers are legal historians only to a very limited extent.

end of part 1.

Shakespeare a Lawyer? - 22b - Falconbridge

Was Shake-Speare a lawyer?

Part 22  (2 of 2)

Valid Pointers to Shake-Speare being a Lawyer

1. Falconbridge v Falconbridge, and the law of bastardy

continued:

Now, Shake-Speare's play, written perhaps between 1593-1596, was based on a similar play by an anonymous author called The Troublesome Reign of John King of England, Part 1, Lines 66-287, which had been published in 1591. [Note: This has long been accepted by scholars, but the Arden editor at the time this analysis was written suggested that Shake-Speare's play may have come first. However, his reasoning is unconvincing. The relevant parts of the anonymous play can be found in Shakespeare's Narrative and Dramatic Sources (1957) by Geoffrey Bullough, Vol. 4].

For the most part Shake-Speare follows the earlier play scene by scene and incident by incident, and even the logical run of much of the dialogue. But when he comes to the trial scene he makes fundamental changes in its treatment of the law of bastardy. In the Troublesome Reign version, Robert advances only the first of the three reasons given by him in Shake-Speare's version (with the slight difference that 6 weeks is stated instead of 14 weeks). He adds another reason - that in physical appearance Philip was the splitting image of Richard I. This was not advanced by Robert in the  Shake-Speare version, though King John and his mother Queen Eleanor had noticed the resemblance and been impressed by it.

In The Troublesome Reign version these two reasons, instead of being treated as irrelevant in law because insufficient to rebut the presumption of legitimacy, are rejected on the facts. Queen Eleanor (without demurrer by King John) says that Philip's physical resemblance to Richard I could be coincidental; and that a baby may be 6 weeks premature (Shake-Speare changes 6 weeks to 14 weeks to make clear that Sir Robert could not be the father). King John in The Troublesome Reign version asks Lady Falconbridge and Philip point blank whether Sir Robert was Philip's true father. Lady Falconbridge asserts that he was. But the question should not have been put since she might have given the opposite answer and in law a spouse was not entitled to give evidence to bastardise his or her putative child. Whether for this reason or some other Shake-Speare omits her from the scene. Philip at first says he thinks he is Sir Robert's son. But then he confesses to an inner conviction that he is the son of Richard I. Needless to say, this is not evidence of the fact. Yet on the strength of that conviction King John pronounces Robert the lawful heir - the opposite conclusion to Shake-Speare's.

The last two reasons given by Robert in Shake-Speare's version, but not in The Troublesome Reign, are introduced by Shake-Speare like a lawyer thinking up further arguments. The second reason I have dealt with. As to the third (a death bed Will), the law did not recognise the right to alter the line of succession by Will until the Statute of Wills (1540), which for the first time allowed direct devises of land.

It is clear that the author of The Troublesome Reign knew little or nothing about the law of bastardy; his treatment of it is a shambles. But Shake-Speare corrects him, subject to a possible error in thinking that non-access by the husband at the time of conception alone was insufficient to rebut the presumption of legitimacy in the reign of King John. Shake-Speare knew at least three things - (1) the basic rule, (2) the rationale the law gave for it, and (3) the inefficacy of a Will to disinherit an heir in King John's time. So he reverses The Troublesome Reign's judgment and pronounces in favour of Philip, not Robert. This volte-face is not made for dramatic reasons. Indeed Shake-Speare achieves the same end result as The Troublesome Reign by making Philip surrender the lands to Robert voluntarily. One wonders whether many Elizabethan non-lawyers knew any more about the law of bastardy than did the author of The Troublesome Reign.

The rule about the ownership of a calf was well known, but probably not its application to the law of bastardy - otherwise the author of The Troublesome Reign would surely have known of it. And no one has cited any other reference to it in connection with bastardy in Elizabethan lay literature. The inefficacy of the three reasons given by Robert in the Shake-Speare version was probably not well known either, since a layman would tend to think them highly relevant. As to the third, a layman would be likely to assume a power to disinherit by Will since it existed in Elizabethan times. Clarkson and Warren, p. 215, write: "This power in the ancestor was commonly recognised or assumed by Elizabethan dramatists"; and they give examples. Of course Bacon knew of the change made by the Statute of Wills of 1540 (see Spedding 7.496).

If a non-lawyer had written King John, would he not have been only too willing to follow The Troublesome Reign in its treatment of the law of bastardy, as he followed it on most other things? But Shake-Speare corrects its law, and so goes to the length of reversing John's judgment as given in it.

----------------------------------------------------------------------------------------------------------------

Now, again, Will Shakspere had no known legal training, no known ability (or interest) to read abstruse law books written in Old French (mentioned in an earlier post but not needed in this case), and no known friends with formal legal training. On the other hand,  Francis Bacon has this reputation for legal understanding:

"As a legal thinker, according to Holdsworth, Bacon was 'not only among the great of his age, but among the greatest of all time'. William S. Holdsworth, History of English Law (1909). He considered Bacon 'a more complete lawyer than any of his contemporaries', and he remarked of Bacon's lectures at Gray's Inn that they had earned him a place 'besides those few great teachers who have appeared at infrequent intervals in the history of English law'. 

 and...

"That view was echoed in 1992 by another legal expert, Daniel Coquillette, who saw him as a profoundly innovative legal mind, consciously transcending national boundaries, and 'the first truly analytical and critical jurist in the Anglo-American tradition'. Francis Bacon, Daniel Coquillette".
Francis Bacon, The History of a Character Assassination, p. 246, by Nieves Mathews

and...

"Politicians used to prefer him to be the wily Bacon....Men of law point to his remarkable knowledge of the law."---John Bayley
The New York Review of Books August 10, 2000

More Promus - 5-6 - Ice boys; Ignorance

5. Bacon's Promus entry 828

"Puer glaciem"   "A boy [playing with] ice"; [from Adagia]

All's Well That Ends Well  2.3.93

"These boys are boys of ice; they'll none have her".

Comment:  According to Mrs. Pott, puer glaciem was "said of those who, though they cannot keep a certain thing, are unwilling to part with it";  e.g. boys who are reluctant to come in from the ice.  It looks as though Shake-Speare had the Latin tag in mind, but here makes it mean that they are frigid boys with no interest in Helena.  Thus he ironically inverts the usual meaning - instead of the boys wanting something, they do not want it.  Editors seem to have missed this Adagia echo.

------------------------------------------------------------

6.  Bacon's Promus entry 948    [I think these had been posted earlier but they're a good reread]

"Better unborn than untaught"  [from Heywood's Proverbs L.603]

2 Henry VI, 4.2.161

          "O gross and miserable ignorance!"

and 4.7.70-1

          "ignorance is the curse of God;

Knowledge the wing wherewith we fly to heaven,"

Love's Labour's Lost  4.2.23

         "O! thou monster Ignorance"

King John 4.2.59

          "Barbarous ignorance"

Twelfth Night  4.2.43-4

          "There is no darkness but ignorance"

Troilus And Cressida  2.3.28-9

          "The common curse of mankind, folly and ignorance"

Othello  3.3.410-11

           "....and fools as gross

As ignorance made drunk"

Comment: There are many other statements in Bacon's works on the supreme importance of knowledge. It was his passionate and life-long creed. And Shake-Speare seems to have shared it, probably more than other Elizabethan playwrights.

Parallels - Shakespeare's King John and Bacon

Here is shown what parallels exist between a single Shake-Speare play - King John - and a single Bacon work, the History of Henry VII (1622). Bacon seldom philosophizes in that work, so the only parallels we can expect to find, if our two authors are one, between the play and the history, are little snatches of distinctive phraseology. And we do find them. Individually they are slight, but cumulatively significant.

K.J. 1.1.188:  'too respective [respectful] and too sociable'
Bacon:          'towards his Queen respective and companionable'

K.J. 2.1.82:   'For courage mounteth with occasion'
Bacon:         'His wit increased upon the occasion'
note: There was a proverb "Great courage is in greatest dangers tried". But Shake-Speare words it similarly to Bacon's line.

K.J. 2.1.241-2: 'For this down-trodden equity we tread
                       In war-like march these greens before your town,'
Bacon:            'He had  given order that there should be nothing in his journey like unto a warlike march'
note: The usual expression was "to tread a march", without the inclusion of "warlike".

K.J. 2.1.568-9 & 587-8
                'That broker [expediency] that still breaks the pate of faith,
                 That daily break-vow, he that wins of all,'
                 ...
                'And why rail I on this commodity [expediency]?    (line 587)
                 But for because he hath not woo'd me yet'
Bacon:      'And for the politic and wholesome laws which were enacted in his
                 time they were interpreted to be but the brokage of an usurper
                 thereby to woo and win the hearts of the people.'
note:  Compare Hamlet 1.3.126-31 where Polonius tells Orphelia not to believe Hamlet's vows "for they are brokers...the better to beguile". Thus Bacon and Shake-Speare both describe expediency (supposed expediency in the Bacon passage) as a "broker" designed to "woo" or to "beguile".

K.J. 2.2.40:    'Which harm within itself so heinous'
Bacon:          'This offence, in itself so heinous'

K.J. 3.3.167:   The legate Pandulph tells the Dauphin that the people will "pick
                     strong matter of revolt and wrath / Out of the bloody fingers' ends
                     of John".
Bacon:           'Some [people] prying and picking matter out of Perkin's countenance and gesture to talk of'

K.J. 3.3.176-7   [of amassing soldiers] 'Or as a little snow, tumbled about,
                      Anon becomes a mountain.'
Bacon:           'Their snowball did not gather as it rolled.'
note:  In both these texts the rolling snowball image is used of military forces.

K.J. 2.1.114 & 3.3.181
                 'To look into the blots and stains of right.'    (line 114)
                 'I will whet on [play on] the King.'             (line 181)
Bacon:       '[There] began to be discovered in the King that disposition which
                  afterwards nourished and whet on by bad counsellors and ministers,
                  proved the blot of his time.'

K.J. 4.2.203:    'Why seek'st thou to possess me with these fears?'
Bacon:            'And he was possessed with many secret fears.'
note:  This Shake-Speare text is immediately followed by the King John parallel in the previous post.
note 2: Shake-Speare uses similar words in 1 Henry IV 2.2.100 and Henry V, 4.1.296,

K.J. 5.1.69:     'Arms invasive'
Bacon:           'It was not the first blow that made the war invasive.'

K.J. 5.7.53-4:   'The shrouds wherewith my life should sail'
Bacon:            'Indeed it came to pass that divers came away by the thread,
                      Sometimes one and sometimes another.'

K.J. 1.1.92:     'A half face like my father'
Bacon:           'Neither did they observe so much as the half face of justice'

It is legitimate to wonder whether one could find any other single play written at any time by any author other than Shake-Speare which shares with Bacon's Henry VII, 11 or more such turns of speech, most of them, it seems, idiosyncratic to some extent.

Parallel - King's humour as a warrant - King John

Now, from Shake-Speare's King John 4.2.203-15, 237 & 242

KING JOHN. Why seek'st thou to possess me with these fears?
    Why urgest thou so oft young Arthur's death?
    Thy hand hath murd'red him. I had a mighty cause
    To wish him dead, but thou hadst none to kill him.
  HUBERT. No had, my lord! Why, did you not provoke me?
  KING JOHN. It is the curse of kings to be attended
    By slaves that take their humours for a warrant
    To break within the bloody house of life,
    And on the winking of authority
    To understand a law; to know the meaning
    Of dangerous majesty, when perchance it frowns
    More upon humour than advis'd respect.
  HUBERT. Here is your hand and seal for what I did.
...
King John. But thou didst understand me by my signs,
    ...
     Out of my sight, and never see me more!

now Bacon:
  "These ministers, being by nature cruel, and knowing well enough what they are wanted for, apply themselves to this kind of work with wonderful diligence; till from want of caution and from over eagerness to ingratiate themselves, they at one time or another (taking a nod or ambiguous word of the prince for a warrant) perpetrate some execution that is odious and unpopular. Upon which the prince, not willing to take envy [blame] of it upon himself, throws them overboard".  Wisdom of the Ancients (Spedding 6(2).704)

Also by Bacon: "Kings hate, when uttered, the very words they have ordered to be uttered: [Latin: Odere reges dicta quae dici jubent]. The Promus 367 (included here because it partners the above passage).

Note: These Bacon and Shake-Speare passages follow each other uncannily, even to the minister being thrown overboard. And their treatment of these matters only partly accords with Holinshed (see Arden edition p. 154).

King John was written by 1598 at the very latest. So Shake-Speare cannot have borrowed from The Wisdom of the Ancients which was not published till 1609; nor Bacon from the published play which did not appear till 1623.